Opinion

Natividad Valencia A/K/A "Tivie" Valencia v. State

Court
Texas Court of Appeals, 13th District
Filed
Jun 24, 2004
Status
Published
Cited by
0 cases
Authority
More cited than 37.7%

The opinion

NUMBER 13-02-020-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

NATIVIDAD VALENCIA A/K/A “TIVIE” VALENCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 103rd District Court

of Cameron County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Justice Rodriguez

Appellant, Natividad Valencia a/k/a Tivie Valencia, was tried before a jury and

convicted on two counts of bribery. See Tex. Pen. Code Ann . § 36.02(a)(1) (Vernon

2003). The trial court assessed a sentence of five years imprisonment, probated, and

a $1,500.00 fine. The trial court has certified that this case “is not a plea-bargain

case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). By

two issues, appellant contends the evidence is legally and factually insufficient to

support his conviction for bribery, and the trial court erred in admitting hearsay

evidence.

We affirm.

I. Background

Valencia was one of five county commissioners in Cameron County, Texas,

when he was indicted for bribery. At the time of the offense, the commissioner’s

court was accepting applications to fill Cameron County Constable positions for

precinct four and precinct six. Josaphat “Hoss” Lozano and Juan Rodriguez applied

for the constable position in their respective precinct. During the time leading up to

the appointment of the constable positions, Commissioner Valencia communicated to

both Lozano and Rodriguez that he would vote for their appointment to constable, but

they in turn needed to hire Ofelio Muniz and Rolando Mancilla. The condition put on

Commissioner Valencia’s vote caused Rodriguez to withdraw his application and

ultimately resulted in Lozano contacting the district attorney’s office.

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, appellant contends the evidence is both legally and factually

insufficient to sustain a conviction for bribery.

A. Standard of Review

In a legal sufficiency review, this Court must examine the evidence presented

in the light most favorable to the verdict and determine whether any rational trier of

fact could have found the essential elements of the offense present beyond a

reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979); Young v. State ,

14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the

reviewing court considers all the evidence admitted that will sustain the conviction,

including improperly admitted evidence. Conner v. State , 67 S.W.3d 192, 197 (Tex.

Crim. App. 2001). Questions concerning the credibility of witnesses and the weight

to be given their testimony are to be resolved by the trier of fact. Mosley v. State ,

983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient

when conflicting evidence is introduced. Matchett v. State , 941 S.W.2d 922, 936

(Tex. Crim. App. 1996). The reviewing court must assume that the fact finder

resolved conflicts, including conflicting inferences, in favor of the verdict, and must

defer to that resolution. Id.

On appeal, we measure the legal sufficiency of the evidence by the elements of

the offense as defined by a hypothetically correct jury charge. Malik v. State , 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge accurately sets out the law,

is authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant is being tried. Id .

We also measure the factual sufficiency of the evidence by the elements of the

offense as defined by a hypothetically correct jury charge for the case. See Adi v.

State , 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d). In evaluating

the factual sufficiency of the evidence, this Court must complete a neutral review of

all the evidence. Vasquez v. State , 67 S.W.3d 229, 236 (Tex. Crim. App. 2002);

King v. State , 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We must then determine

whether the proof of guilt is so obviously weak as to undermine confidence in the

jury’s determination or whether the proof of guilt, although adequate if taken alone,

is greatly outweighed by contrary proof. King , 29 S.W.3d at 563 ; Johnson v. State ,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We are also required to accord due

deference to the fact-finder’s determinations on the weight and credibility of the

evidence and may not merely substitute our own judgment. Swearingen v. State , 101

S.W.3d 89, 97 (Tex. Crim. App. 2003).

B. The Law

Under section 36.02(a)(1) of the Texas Penal Code, a person commits the

offense of bribery if he intentionally or knowingly offers, confers, or agrees to confer

on another, or solicits, accepts, or agrees to accept from another any benefit as

consideration for the recipient’s decision, opinion, recommendation, vote, or other

exercise of discretion as a public servant, party official, or voter. Tex. Pen. Code Ann .

§ 36.02(a)(1) (Vernon 2003). It is no defense to prosecution that a person whom the

actor sought to influence was not qualified to act in the desired way whether because

he had not yet assumed office or he lacked jurisdiction or for any other reason. Id . §

36.02(b).

Thus, to convict appellant on both counts of bribery under a hypothetically

correct jury charge, the State must prove that: (1) Natividad Valencia intentionally or

knowingly offered, conferred or agreed to confer a benefit as consideration for

Josaphat “Hoss” Lozano’s exercise of discretion or decision as a public servant to hire

or employ Rolando Mancilla; and (2) Natividad Valencia intentionally or knowingly

offered, conferred or agreed to confer a benefit as consideration for Juan Rodriguez’s

exercise of discretion or decision as a public servant to hire or employ Ofelio Muniz.

C. Analysis

Appellant contends the evidence is legally and factually insufficient to support

his conviction for bribery. Specifically, appellant challenges only the sufficiency of the

evidence regarding proof of (1) a bilateral agreement, and (2) a benefit.

1. Bilateral Agreement

Before addressing this evidentiary issue, we must first determine whether proof

of a bilateral agreement was required. Appellant cites McCallum v. State , 686 S.W.2d

132, 136 (Tex. Crim. App. 1985), for the proposition that a bribery conviction requires

a bilateral agreement. McCallum involved a defendant in a civil suit who was

convicted of bribing a juror. The indictment in McCallum alleged that the defendant

conferred a benefit as consideration for the juror’s decision and vote. Id . The court

of criminal appeals in analyzing the “consideration” element of bribery, concluded that

when the indictment alleges the accused intentionally or knowingly “conferred” a

benefit as consideration, the State is required to prove “a bilateral arrangement – in

effect an illegal contract to exchange a benefit as consideration for the performance

of an official function.” Id . After reviewing the evidence presented at trial, the court

concluded there was no evidence of a bilateral agreement and reversed the conviction.

Id . at 139.

In response the State argues that McCallum is distinguishable under the facts

of this case, and that this Court should follow Martinez v. State , 696 S.W.2d 930

(Tex. App.–Austin 1985, pet ref’d). In Martinez , a police officer was found guilty of

the offense of bribery. Id . at 934. The indictment alleged in part that the officer

intentionally and knowingly solicited a benefit as consideration for the police officer’s

decision as a public servant. Id . at 930. The Austin court affirmed the conviction

holding that where it is alleged in the indictment that the accused “offered” or

“solicited” a benefit as consideration for an official act, it is not necessary to prove a

bilateral arrangement or unlawful contract. Id. at 933 . The offense of bribery is

complete when the offer or solicitation is made. Id . The Martinez court distinguished

McCallum , finding that proof of a bilateral arrangement was necessary only where, as

in that case, the State was required by the allegations of the charging instrument to

prove that the benefit was in fact conferred or accepted. Id .

In this case the indictment on each count of bribery stated that appellant

“intentionally or knowingly offered, conferred or agreed to confer a benefit . . . .”

Because the indictment in this case alleges, in the disjunctive, that appellant offered

or conferred a benefit, the State was not required to prove, as in McCallum , that the

benefit was conferred. We therefore distinguish McCallum from the facts of this case,

and, following Martinez , conclude that the State was not required to prove the

existence of a bilateral agreement. See id . Thus, we need not reach appellant’s

sufficiency issue regarding a bilateral agreement.

2. Benefit

Appellant also argues that the State failed to prove the “benefit” element of

bribery. Appellant specifically complains that there is insufficient evidence to establish

a pecuniary gain.

Section 36.01 of the Texas Penal Code defines a “benefit” as “anything

reasonably regarded as pecuniary gain or pecuniary advantage . . . .” Tex. Pen. Code

Ann . § 36.01(3) (Vernon 2003). In determining what may be included in the definition

of “benefit,” section 1.05(a) of the penal code instructs us not to apply a strict

construction to the law in question. Id . § 1.05(a). Rather, the provisions of the code

are to be construed “according to the fair import of their terms, to promote justice and

effect the objectives of the code.” Id . It is clear from the language of section 36.01,

that the Legislature intended not only to include “pecuniary gain” or “advantage” in the

definition of “benefit,” but also “anything reasonably regarded” as pecuniary gain or

advantage. Id . § 36.01(3). The inclusion of “anything reasonably regarded” broadens

the definition and allows latitude in its interpretation.

A review of the record reveals appellant, as county commissioner, offered one

of three votes necessary for appointment to the position of county constable. Lozano

testified at trial that the county constable position was paid an annual salary of

approximately $34,800.00. Additionally, Lozano testified that he believed appellant

was offering him a job through his vote, and acknowledged that he was receiving a

substantial benefit and pecuniary gain. See Kaisner v. State , 772 S.W.2d 528, 529

(Tex. App.–Beaumont 1989, pet. ref’d) (stating that under the penal code, the offer

of a job was the offer of a benefit).

Reviewing this evidence in the light most favorable to the verdict, we conclude

any rational trier of fact could have found beyond a reasonable doubt that appellant’s

vote for a salaried county constable position, could be reasonably regarded as a

pecuniary gain or advantage and thus constituted a “benefit.” See Jackson , 443 U.S.

at 319 . Therefore, the evidence is legally sufficient to sustain the conviction for the

offense of bribery. Moreover, as there is no contrary evidence, we cannot conclude

that the proof of guilt is so obviously weak as to undermine confidence in the jury’s

determination or that the proof of guilt, although adequate if taken alone, is greatly

outweighed by contrary proof. See King , 29 S.W.3d at 563 . Therefore, the evidence

is factually sufficient to support appellant’s conviction. Accordingly, we overrule

appellant’s first issue.

3. Discretion to Hire or Employ

Although uncontested by appellant, the dissent addresses the sufficiency of the

evidence regarding the “exercise of discretion or decision as a public servant to hire

or employ” portion of the indictment, and concludes that there was no evidence

regarding this element. As a basis for this conclusion the dissent states that Lozano

and Rodriguez, as county constables, would not have the authority to hire or employ

deputy constables. However, the dissent ignores the plain language of section

36.02(b) which states that it is no defense that the person whom the actor sought to

influence was not qualified to act in the desired way. See Tex. Pen. Code Ann. §

36.02 (Vernon 2003). Under the penal code, whether Lozano or Rodriguez would

have the power to hire or employ deputy constables is not an issue.

Furthermore, the dissent relies on section 86.011(a) of the local government

code, which states the commissioners court shall approve and confirm the

appointment of the deputy only if the commissioners court determines that the

constable needs a deputy to handle the business of the constable’s office originating

in the precinct. Tex. Loc. Gov’t Code Ann. § 86.011(a) (Vernon 1999). Although the

dissent is correct that the employment of a deputy constable requires confirmation of

the commissioners court, section 86.011(a) does not give the commissioners court

any discretion to select the deputy constable or even to reject a particular candidate.

See id. The only inquiry the commissioners court is allowed and required to make

under this section is whether a deputy constable is necessary to handle the precinct’s

business. The discretion to select the potential deputy constable lies within the

constable’s discretion. Accordingly, the hiring of Mancilla or Muniz would have been

a decision involving the exercise of Lozano’s and Rodriguez’s discretion.

III. INADMISSIBLE HEARSAY

In his second issue, appellant contends the trial court erred in admitting

prejudicial hearsay into evidence. Appellant complains of a letter offered by the State

that was admitted over appellant’s objection.

This Court reviews the trial court’s decision to admit or exclude evidence under

an abuse of discretion standard. See Green v. State , 934 S.W.2d 92, 101-02 (Tex.

Crim. App. 1996). A trial court abuses its discretion when it acts without reference

to any guiding rules and principles or acts arbitrarily and unreasonably. Montgomery

v. State , 810 S.W.2d 372, 378-80 (Tex. Crim. App. 1990). We will not reverse a trial

court if its ruling is within the “zone of reasonable disagreement.” Id . at 391.

Hearsay is a statement, other than one made by the declarant while testifying

at a trial or hearing, offered to prove the truth of the matter asserted. Tex. R. Evid .

801(d). When the State attempted at trial to introduce a letter allegedly written by

appellant, defense counsel promptly objected. In response to defense counsel’s

objection the trial court admitted the letter into evidence accompanied by a limiting

instruction that the letter was being admitted not to show that it came from the

defendant, but only to show that it was received by the witness. Since the letter was

not admitted to prove the truth of the matter asserted, but merely to show that the

witness received the letter, the hearsay rule does not bar this evidence. See City of

Austin v. Houston Lighting & Power Co. , 844 S.W.2d 773, 791 (Tex. App.–Dallas

1992, writ denied). Therefore, there was no abuse of discretion. Appellant’s second

issue is overruled.

IV. CONCLUSION

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Dissenting Opinion by Justice Hinojosa.

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 24th day of June, 2004.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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